Guidance

Department of Health response to the legal opinion published by 38 degrees on the application of procurement and competition law

Department of Health response to the legal opinion published by 38 degrees on the application of procurement and competition law.

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A legal analysis of the application of procurement and competition law was published by 38 Degrees in August 2011. The Department of Health does not agree with all the conclusions reached within that the legal analysis. In particular:

  • About the future capacity and capability of commissioners to comply with procurement law and the steps being taken to address this;
  • The conclusions drawn from the BetterCare case about the likely applicability of domestic and European competition to NHS commissioners;
  • The allegations that the Bill would lead to a system geared heavily in favour of private companies; and, would do nothing to prevent so-called ‘cherry picking’;
  • The ability of the provision in the Bill to, for example, preclude ‘cherry-picking’.